EXHIBIT 4.4
SECOND AMENDMENT dated as of March 1, 1997 (this
"AGREEMENT") relating to the Credit Agreement dated as of
December 5, 1995, as amended (the "CREDIT AGREEMENT"), among
CASTLE & XXXXX, INC., a Hawaii corporation (the "BORROWER"),
the financial institutions party thereto (the "LENDERS"),
THE CHASE MANHATTAN BANK, a New York banking corporation,
formerly known as Chemical Bank, as administrative agent (in
such capacity, the "ADMINISTRATIVE AGENT") and as collateral
agent (in such capacity, the "COLLATERAL AGENT") for the
Lenders.
The Borrower has requested that the Lenders enter into this Agreement
in order to amend the Credit Agreement to change the model homes and inventory
covenants.
Accordingly, in consideration of the agreements, provisions and
covenants herein contained, and in compliance with the provisions of Section
9.08(b) of the Credit Agreement, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENT. The Required Lenders hereby agree, effective
as of October 1, 1996, to amend the Credit Agreement as follows:
(a) Section 1.01 is hereby amended by adding the following definitions in
their respective alphabetical locations:
"'STANDING INVENTORY' shall mean, at any date, the number of unsold
homes (other than Model Homes) of the Borrower and its Subsidiaries owned
as part of their Homebuilding Business for which construction has been
completed as of such date.
"'UNSOLD INVENTORY' shall mean, at any date, all Standing Inventory
and all Work in Progress as of such date. The term Unsold Inventory shall
not include homesites to be sold without homes.
"'WORK IN PROGRESS' shall mean, at any date, the number of unsold
homes (other than Model Homes) of the Borrower and its Subsidiaries owned
as part of their Homebuilding Business for which above-ground home
construction has been commenced, but not yet completed as of such date."
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(b) Section 1.01 is hereby amended by modifying the definition of "Land
under Development" to add the parenthetical phrase "(other than the foundation
or slab)" after the reference to "home construction" in the last line thereof.
(c) Section 1.01 is hereby amended by amending and restating the
definition of "Unsold Homes/Lots" in its entirety as follows:
"'UNSOLD HOMES/LOTS' shall mean, at any date, the consolidated book
value at such date of all homes and homesites (other than Model Homes) of
the Borrower and its Subsidiaries as part of their Homebuilding Business
for which above-ground construction has started, but for which there is no
contract of sale with a third party."
(d) Section 6.15 is hereby amended by (i) deleting paragraph (a) thereof in
its entirety, (ii) redesignating paragraph (b) thereof as paragraph (a) and
(iii) adding the following new paragraphs (b), (c) and (d) at the end thereof:
"(b) Permit Unsold Homes/Lots and Model Homes to exceed at any date
15% of Tangible Net Worth.
"(c) Permit Model Homes to exceed at any date 60 in number.
"(d) (i) Permit Unsold Inventory at any of September 30, 1996,
December 31, 1996, March 31, 1997, June 30, 1997 or September 30, 1997, to
exceed a number of units equal to 55% of the total number of units of
Unsold Inventory sold during the period of 12 full months preceding such
date.
"(ii) Permit Unsold Inventory at December 31, 1997, to exceed a number
of units equal to 45% of the total number of units of Unsold Inventory sold
during the period of 12 full months preceding such date.
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"(iii) Permit Unsold Inventory at the last day of any fiscal quarter
ending after December 31, 1997, to exceed the following number of units
(based on the number of units of Unsold Inventory sold during the period of
12 full months preceding such quarter-end):
Unit Sales During Maximum Units
Preceding 12 Months at Quarter-end
------------------- --------------
If 500 units or less 175
If more than 500, but 550 or less 193
If more than 550, but 600 or less 210
If more than 600, but 650 or less 228
If more than 650, but 700 or less 245
If more than 700, but 750 or less 263
If more than 750, but 800 or less 280
If more than 800, but 850 or less 298
If more than 850, but 900 or less 315
If more than 900, but 950 or less 333
If more than 950 units 350
"PROVIDED, HOWEVER, that (A) if Unsold Inventory exceeds the maximum level
specified in this Section 6.15(d) at the end of any single fiscal quarter, then
the sole consequence thereof shall be that the percentage specified in clause
(c) of the definition of Borrowing Base shall be automatically deemed reduced to
65% for the next succeeding fiscal quarter; (B) if Unsold Inventory exceeds the
maximum level specified in this Section 6.15(d) at the end of two consecutive
fiscal quarters, then the sole consequence thereof shall be that the percentage
specified in clause (c) of the definition of Borrowing Base shall be
automatically deemed reduced to 50% for the next succeeding fiscal quarter and
each fiscal quarter thereafter until Unsold Inventory is in compliance with the
maximum level specified in this Section 6.15(d); and (C) if Unsold Inventory
fails to comply with the maximum level specified in this Section 6.15(d) at the
end of three consecutive fiscal quarters, such failure will constitute an Event
of Default. The reductions in Borrowing Base percentages
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referred to in clauses (A) and (B) of the immediately preceding proviso
shall be effective upon the delivery to the Administrative Agent of the
financial statements described in Section 5.04(a) or (b), as applicable,
for the preceding fiscal quarter in question, and shall remain in effect
until the delivery to the Administrative Agent of the financial statements
described in Section 5.04(a) or (b), as applicable, for the next fiscal
quarter."
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Borrower represents
and warrants to each of the Lenders, the Administrative Agent and the Collateral
Agent that:
(a) After giving effect to this Agreement, the representations and
warranties set forth in Article III of the Credit Agreement are true and
correct in all material respects with the same effect as if made on the
date hereof, except to the extent such representations and warranties
expressly relate to an earlier date.
(b) After giving effect to this Agreement, no Event of Default or
Default has occurred and is continuing.
SECTION 3. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 4. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original, but all of which
taken together shall constitute one and the same instrument.
SECTION 5. EXPENSES. The Borrower agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Agreement, including the reasonable fees, charges and disbursements of
Cravath, Swaine & Xxxxx, counsel for the Administrative Agent.
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SECTION 6. DEFINED TERMS. Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
CASTLE & XXXXX, INC.,
by
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Name:
Title:
THE CHASE MANHATTAN BANK,
formerly known as Chemical
Bank, individually and as
Administrative Agent and
Collateral Agent,
by
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Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
by
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Name:
Title:
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BANK OF HAWAII,
by
----------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, SAN
FRANCISCO AGENCY,
by
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Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO,
by
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Name:
Title:
KREDIETBANK N.V.,
by
----------------------
Name:
Title:
SOCIETE GENERALE,
by
----------------------
Name:
Title:
7
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
by
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Name:
Title:
FIRST HAWAIIAN BANK,
by
----------------------
Name:
Title:
